Problems with the Health Court Proposal

The AMA is on a health court kick. The benefits get reviewed in this article . This is a good review of the benefits of the health courts, and why the AMA endorses it. The AMA is now dominated by left wing ideologue staff, with elected officers as figureheads. The sitting president has had to rebut the AMA position in its newspaper on occasion.

The benefits include the following. Let's go through the problems of each talking point.


(1) "• Judges would be assisted by neutral expert witnesses and guided by evidence-based practice guidelines. "

a) The neutral experts would be paper shufflers from academia, especially left wing biased, Ivy schools, with half the clinical experience of the clinicians. The deal in med school is that you get half the time off from patient care to do research. They are verifiers, not leaders nor originators, seeking grants awarded only to safe proposals. b) The guidelines would take on the force of law in the hands of the academic paper shufflers, and their biased lawyer collaborators on the bench. They would be parsed word for word, like an entertainment contract. And lawyer gotcha would be the extent of justice.

The guidelines are like restatements, summaries of studies. The studies verify 5 years later what clinicians have been doing. By the time of publication, clinicians have moved on. Studies use parametric statistics (from the formula describing the bell shaped curve). These validly predict the fractions in the bigger population, and certain assumptions must be satisfied for their validity. Clinical care is a series of on-off, single case experiments, more like flipping coins. These are better described by the binomial distribution curve. So clinical care violates the assumptions of parametric statistics. Guidelines are not relevant until the number of patients seen exceeds 100's of patients.

Guidelines are garbage science per se. They will change every two or three years. They will change because eventually, a single desperate clinician violated them. That change helped a desperate patient. Everyone then imitated the change. It got studied, verified, and included in the new guidelines years later. So reliance of the health court on guideline risks crushing innovation with the force of law and punishment.

If people object to the cost of defensive medicine, perhaps as much as 10% of the health budget, wait till they get the guideline medicine bill. That will have been imposed on doctors at the point of the gun of the court, like laws and regulations. People will have to do things according to the book, written by clueless academics.

(2) "• Awards would be more consistent. ... Health courts could make awards based on a schedule of benefits, similar to workers’ compensation."

(3)"• More patients would be compensated. Under the present tort system, plaintiffs must prove negligence by a doctor or hospital. With health courts, claimants need only show that the injury would not have occurred if best practices had been followed. The standard would be whether the injury was avoidable or preventable, not whether a physician fell below the standard of care. The entire process would be far less adversarial."

2) and 3) This workmen's compensation comparison fits. The health court will increase the filing for mild and moderate injuries. Patients will game the court, as they do workmen's comp. Costs of litigation and compensation will explode from 2-3% of the health budget to something closer to far higher workmen's compensation rates. Other lawyer experimentation with no-fault schemes such as with car insurance failed to lower total costs.

(4)"• Although more claims would be filed, the average award would be considerably lower. That’s been the experience with the Kaiser Permanente system in California where 6 million patients have signed agreements to resolve malpractice disputes through arbitration rather than jury trials."

The total costs have not decreased.

(5) "• Perhaps most important, health courts would promote patient safety. Reporting information about injuries to a central data base would allow experts to determine why errors occur and how they can be prevented. The current punitive system encourages defendants to hide mistakes rather than examine them."

Where is the evidence that workmen's comp promoted worker safety? Safety improves with technology, and the realization of the costs of injury.

The problems with the current torts approach do not require scrapping the entire approach. They include a majority of weak cases, established biases against defendants, pro-litigation biased rent seeking lawyers on the bench failing to enforce the rules as they stand, failure of lawyer discipline to improve their product.

A tort approach ending the self-dealt immunity of the lawyers would improve their lawsuits, decrease costs from its current baseline, and not inflict the above damages on a stressed and overly expensive health system.